Winters v. Board of Education of Lakeland Central School District , 99 N.Y.2d 549 ( 2002 )

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the school district’s determination terminating petitioner reinstated.

The school district terminated petitioner as head custodian of a high school after it adopted the findings and penalty determination of the disciplinary Hearing Officer who found petitioner had engaged in misconduct, including a breach of trust when he removed and copied a document he found on the principal’s desk. The Appellate Division concluded that the penalty of termination was disproportionate to the offense. Under the circumstances of this case, particularly in light of petitioner’s statement that he “probably would” act in a similar manner if placed in the same situation, “we cannot conclude that the penalty of dismissal imposed * * * shocks the judicial conscience” (Matter of Kelly v Safir, 96 NY2d 32, 39-40 [2001]; see also Matter of Pell v Board of Educ., 34 NY2d 222, 233 [1974]). Accordingly, it is unnecessary to address the school district’s remaining argument.

Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, reversed, etc.